Citation Nr: 1700611 Decision Date: 01/10/17 Archive Date: 01/18/17 DOCKET NO. 13-23 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a seizure disorder. 2. Entitlement to an initial compensable rating for migraine headaches. 3. Entitlement to an initial compensable rating for sinusitis. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for sciatica. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Air Force from January 1989 to January 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. On an August 2013 VA Form 9, the Veteran requested a videoconference hearing. The Veteran's hearing was scheduled to be held on October 26, 2016. In a September 2016 letter, the Veteran was notified of the scheduled hearing. However, the Veteran failed to appear, has not submitted good cause for failure to appear, and has not since requested that his hearing be rescheduled, Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2015). The Board also notes that in his August 2013 VA Form 9, the Veteran requested additional time to file his substantive appeal. This document, however, was sufficient to constitute his substantive appeal, and the Veteran's representative subsequently indicated that this appeal was ripe for certification, which the RO subsequently did. The Board finds that this appeal is properly before it. The issues of entitlement to an initial compensable rating for migraine, an initial compensable rating for sinusitis, service connection for sleep apnea and service connection for sciatica are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has complex partial seizures, which are controlled by continuous medication; the evidence does not demonstrate at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months and his last grand mal seizure was in 2006. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for service-connected seizures have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1-4.7, 4.10, 4.59, 4.124a, Diagnostic Codes 8003, 8910, 8911 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2015). The Court has held that in cases, as here, where service connection has been granted and an initial disability rating and effective date assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been satisfied. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006); Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (b)(3). Therefore, in this circumstance VA does not have to provide additional VCAA notice concerning these "downstream" disability rating and effective date elements of the claim. See Goodwin v. Peake, 22 Vet. App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Rather, according to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105 (d) require VA to issue a Statement of the Case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. A June 2013 SOC adjudicated this downstream claim after the Veteran had expressed his timely disagreement with the initial noncompensable rating assigned for seizure disorder. Therefore, he has received all essential notice, he has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. The Veteran has not alleged any prejudice with regard to the content or timing of the notice he was provided, certainly not shown that any such error is outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran by obtaining all potentially relevant records and providing an examination or obtaining a medical opinion when needed to assist in making a decision on the claim. The RO obtained the Veteran's service treatment records (STRs) and afforded the Veteran a VA examination to determine the severity of his seizure disorder. Regarding the issue adjudicated on the merits, the Board finds that the VA examinations of record are sufficient upon which to determine the appropriate disability ratings. The Board notes the appellate brief from the representative which includes the Veteran's name, claim number and date. The representative had an opportunity to submit an argument in support of the Veteran's appeal and the Board will decide this matter based on the evidence of record as it is currently developed. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review. VA has complied with all procedural due process requirements. Merits of the Increased Rating Claim Disability evaluations are determined by evaluating the extent to which a Veteran's service connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). In rating neurological symptoms, the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances are to be considered. 38 C.F.R. § 4.120. The Veteran is currently assigned a 10 percent disability rating under DC 8910. Under the rating codes for epilepsy, grand mal epilepsy and petit mal epilepsy are rated under the general rating formula for seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8910, 8911. A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness and a minor seizure consists of a brief interruption in consciousness or conscious control associated with starting or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. See Note (1). The General Rating Formula for Major and Minor Epileptic Seizures provides that a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is warranted for at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted for averaging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week. An 80 percent rating is warranted for averaging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted for averaging at least 1 major seizure per month over the last year. Notes after the formula state that when continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent and that this rating will not be combined with any other rating for epilepsy. Another note states that in the presence of major and minor seizures, one should rate the predominating type. 38 C.F.R. § 4.214a, DC 8911. The Veteran was afforded a VA examination in May 2009. There, the Veteran stated he first had a nocturnal seizure during service in 2001. He also stated that he his last grand mal seizure was in 2006. He reported that he "will have partial seizures approximately two every month." The examiner did not note when the Veteran had his last seizure. The Veteran described episodes of lost focus, but no loss of consciousness. There are no tics or paramyoclonus, chorea or choreiform disorders. The examiner noted that the Veteran is treated with medication. Considering this evidence in total, to specifically include the examiner's findings, the Board finds that the Veteran did not have minor seizures during this period. Liberally considering the evidence, the Veteran's report of partial seizures was not a report of minor seizures; specifically, the evidence does not indicate that these events include an interruption of consciousness or conscious control associated with staring or rhythmic blinking, or other symptomatology contemplated by the definition contained in Note (2) in 38 C.F.R. § 4.124a, after Diagnostic Code 8911. In the Board's determination, the Board highlights that VA treatment records show that the Veteran's seizures are controlled by medication. A June 2008 treatment note shows that the Veteran reported that "things are going fine" and that he has not had any more seizures. The Veteran's seizures do not warrant a rating in excess of 10 percent. The evidence demonstrates that the Veteran's seizures are controlled by medicine and that he has not had a grand mal seizure since 2006. The Court of Appeals for Veterans' Claims has stated that the Board can change the Diagnostic Code, if appropriate to give the Veteran an increased rating. Butts v. Brown, 5 Vet. App. 532 (1993). Here, the Board cannot find a Diagnostic Code under which an increase is warranted. As the seizures were not shown to be more frequent than 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months, a rating higher than 10 percent cannot be awarded. The Board has considered whether the Veteran's claims warrant referral for extra-schedular consideration. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321 (b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Veteran's symptoms are expressly contemplated by the rating schedule. As outlined above, the Veteran's seizures are well-controlled by medicine and the last one was in 2006. Such symptoms are contemplated by the schedular criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Codes 8100, 8910 and 8911. The regulations and case law expressly consider each of these symptoms. In other words, these Diagnostic Codes adequately contemplate all of the Veteran's symptoms. Therefore, the first step of Thun has not been met, and referral for the assignment of extraschedular disability ratings is not warranted. As the preponderance of the evidence is against the claims the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107. ORDER Entitlement to an initial rating in excess of 10 percent for a seizure disorder is denied. REMAND The Veteran seeks higher disability ratings for migraines and sinusitis, and service connection for sciatica and sleep apnea. Remand is required as additional development is necessary before the Board can adjudicate these claims. In July 2009, the Veteran was afforded a general VA examination to determine the etiology and severity of his migraines, sleep apnea and sciatica. He was also afforded a separate VA examination to pertaining to his sinusitis. For the reasons below, these examinations are inadequate and another VA examination is warranted. Regarding sleep apnea, the examiner opined that the Veteran "does not meet the criteria for diagnosis of sleep apnea." However, the record shows that following a sleep study conducted in March 2008, the Veteran was diagnosed with sleep apnea. The VA examiner failed to reconcile this 2008 diagnosis with his opinion that the Veteran does not have sleep apnea. VA has a duty to return for clarification unclear or insufficient examination reports. In particular, such clarification should be obtained where the missing evidence bears greatly on the probative value of the examination report. Thus, this case must be remanded so that an adequate medical opinion can be generated. With respect to the sciatica, the examiner determined that the Veteran's sciatica was resolved. However, examiner also noted that the Veteran has daily pain that lasts for one hour in the low back that the record shows evidence of lumbar strain and sciatica. The examiner noted that the Veteran had physical therapy in 2008 and an epidural injection in September 2008. An adequate opinion regarding the etiology of the Veteran's sciatica is necessary because just 5 months prior to the Veteran's application for benefits, he received treatment for sciatica. The Court has held that the presence of a chronic disability at any time during or immediately preceding the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). Therefore, upon remand, an adequate opinion should be obtained. Regarding the increased rating claims, it is unclear whether the Veteran's headaches are related to his migraines or his sinusitis. During the examination for migraines, the Veteran reported that his headaches occur once every 2 to 3 weeks and they last for more than 3 hours. As headaches may be a symptom of sinusitis, an adequate assessment of the Veteran's disabilities is necessary to determine adequate disability ratings. Furthermore, the characteristics of the headaches are unclear. Upon remand, the examiner must adequately evaluate the severity of the Veteran's migraines and any symptoms of his sinusitis. In light of the remand, updated VA treatment records should be obtained. 38 U.S.C.A. § 5103A (c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Upon completion of directive #1, schedule the Veteran for a VA examination with a clinician with experience in the diagnosis and treatment of sleep apnea. The purpose of the review is to determine the nature, etiology and onset date of the Veteran's sleep apnea. The entire claims file, including a copy of this remand should be made available to and be reviewed by the clinician in conjunction with the examination, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: a) Whether the Veteran currently has, or at any time during the appeal period had sleep apnea. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. b) Is it as likely as not (i.e., to at least a 50 percent degree of probability) that any current sleep apnea had its onset during service or was otherwise causally or etiologically related to service, to include any symptomatology, event, or in-service incident? If sleep apnea cannot be validated or confirmed, please explain why such diagnosis cannot be validated or confirmed. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Upon completion of directive #1, schedule the Veteran for an examination regarding sciatica. The entire claims file, including a copy of this remand should be made available to and be reviewed by the clinician in conjunction with the examination, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following: a) Whether the Veteran currently has, or at any time during the appeal period had sciatica. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. b) Is it as likely as not (i.e., to at least a 50 percent degree of probability) that any current sleep apnea had its onset during service or was otherwise causally or etiologically related to service, to include any symptomatology, event, or in-service incident? If sciatica cannot be validated or confirmed, please explain why such diagnosis cannot be validated or confirmed. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. Upon completion of directive #1, schedule the Veteran for an examination to determine the severity of his service-connected sinusitis. The entire claims file, including a copy of this remand should be made available to and be reviewed by the clinician in conjunction with the examination, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should detail the symptomatology associated with the service-connected sinusitis, including the frequency and severity of incapacitating episodes, or episodes of headaches, pain, and purulent discharge or crusting. The examiner should specifically note the frequency and duration of episodes requiring antibiotic treatment. All pertinent symptomatology and findings should be reported in detail. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Upon completion of directive #1, schedule the Veteran for an examination to determine the severity of his migraine. The entire claims file, including a copy of this remand should be made available to and be reviewed by the clinician in conjunction with the examination, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The appropriate Disability Benefits Questionnaire should be completed. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After completing the above directives and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claims for service connection for sleep apnea and sciatica, and the claim for higher initial ratings for migraines and sinusitis. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs